Brace for Bad 4th Circuit Ruling

September 29, 2014

“NC Vote suppression Laws Struck Down by Federal Judges.”

At least, that’s how those McClatchy “news” papers describe laws designed to reduce vote fraud and equalize the rights of all citizens seeking free elections; but even sadder, that will be the gist of their “news” reports. North Carolina’s trial of the century will probably suffer this setback along the way, but don’t be discouraged! There is reason for optimism.

This ugly assessment began two days after a three-judge panel for the US Circuit Court of Appeals for the Fourth Circuit court heard oral arguments in Charlotte. That was when yours truly was finally able to debrief a few attorneys who were more accustomed (than I) to Thursday’s proceedings . . . and it wasn’t pretty.

“We couldn’t have gotten a worse set of judges in the entire Fourth Circuit,” said one source.

The three-judge panel is randomly filled from among the 14 active circuit judges in this district; but (as is the court’s custom) their names were withheld until the day of the oral arguments.

“But wait,” I objected, “Judge Motz asked some hard questions to both sides.”

One well-placed attorney refuted my glimmer of hope by explaining her reputation for belittling all attorneys who argue in her court. She may be polite and affable but no fun to face in court, sorta like the dreaded Professor Kingsfield in the 1973 movie, The Paper Chase.

“We’re losing big at this level,” said one source, who expects to see a quick ruling this coming week.

That’s when the fraud deniers will spike the football. Headlines and editorials all across the nation will slam North Carolina and beat up US Senate candidate (and former House Speaker) Thom Tillis for daring to allow such an “egregious” law to be enacted. But, this too shall pass.

Sticking with the football analogy, it’s a long game. Their side is losing badly and they know it; so don’t let a second-quarter touchdown scare you.

Will Biased Judges Exercise PEST Control?

After these three Democratic judges ruin their reputation by ruling for the plaintiffs, the decision will cause a chaotic reversal of four fraud-prevention measures in the omnibus election law reform bill known as House Bill 589 (HB 589). We’ll call them the PEST provisions because that’s how the fraud deniers view them and it’s also how we can remember them easily.

P is for provisional ballots. These things are chaotic and bad people have exploited this fraud-friendly provision of federal law by “overwhelming the system.” Shortly after each election, provisional ballots are all handled (and handled a lot, I might add) by a three-member election board in each county. NC had around 52,000 of them in the 2012 election. California had over a million. With hardly any rules, each board votes on the admissibility of each ballot and their biases are on full display during that process. Our Legislature enacted one–just one–standard on the 100 county boards and the bad guys are protesting in the streets about it. The standard is to only accept provisional ballots when they’re cast in their legitimate precinct.

E is for early voting. By reducing the number of days allowed for early voting, the Legislature made it harder for circuit-riding voters to move from one early voting location to another with a stack of fake utility bills that would enable them to cast lots of illegal votes. The more days you have for this practice, the more votes can be stolen. The Legislature reduced the days, but mandated the same number of hours; so this law allows either longer hours of voting at the same locations or it allows the same number of hours at more locations. So, one effect of this law is to create more satellite locations for early voters. This expands access for the poor, but fraud deniers ignore such inconvenient facts.

S is for same-day registration (SDR). This is the idiotic practice of allowing people to register and vote at a time is so close to the election that election officials have no way to verify the residency of the voters. In our Nov 2012 analysis, more than 2,000 SDR votes were counted, but their official voter registration cards were returned by the Post Office, marked “undeliverable.” Through no fault of election officials, Buncombe County had 64 such votes returned and also had a County Commission race that was decided by 18 votes. SDR is one of the easiest ways to commit massive election fraud, so the plaintiff wants it to remain on the books in North Carolina. Only eight states are currently stupid enough to have SDR on the books, but the plaintiff is shamelessly screaming that NC’s lawmakers are a bunch of racists for not keeping SDR in our state.

T is for teen registrations. Each year, high school civics teachers have been able to hold a grade over their students’ heads and make them register to vote as soon as they turn 16. The idea is to “encourage participation,” but the result is tens of thousands of registrations in a student’s home town that never result in votes. Even worse, when the same student goes away to college, activists register them again by groups like NC PIRG and numerous environmental activists. The law pretends that these kids’ earlier registrations will be removed when they register at FarAway University, but we know otherwise and so did the Legislature. This policy has served to fatten the voter rolls with names of people who don’t realize they’re registered to vote and this is a dangerous situation that invites either identity theft or double voting. The Legislature killed the practice and we applaud.

And the Good News Is . . .

As noted earlier, probably sometime this week, the Appellate Court will stomp their feet and scold NC to add all of those provisions back onto the books. . . RIGHT THIS MINUTE!

But as this sort of theater goes, the state will appeal to the Supremes, who will have one judge make a quick decision either to uphold or to “temporarily stay” the order.

That’s where the story gets hopeful again: Justice John Roberts is the Supreme Court Judge assigned to the Fourth Circuit; and unless he wakes up this week with another horse’s head in his bed, Justice Roberts should reasonably agree that changing those four major aspects of the law, less than 40 days before the election would be too disruptive. Hopefully, he will stay their order until the actual trial, which will be in Winston Salem next July.

But of course, if McClatchy continues their current trajectory toward self-destruction, Justice Roberts’ decision will be buried near the back of section B, among the obituaries, which is also where the Fourth Circuit’s decision should go.